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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISIO N, CAPE TOWN )
Case number : 24383 /2024
In the matter between
ENERGY MASTER BUILDERS CC Applicant
and
ROXANNE IVANICEVIC First respondent
SUGABIRD (PTY) LTD Second respondent
JUDGMENT DELIVERED ON 21 JANUARY 2025
VAN ZYL AJ :
Introductio n
1. The question in this case is whether the respondents have spoliated the applicant
from a building site. T he applicant instituted a n urgent application to restore its
“unrestricted possession of the immovable property situated at 7 [...] V[...] Estate,
Paarl, Western Cape ”.1
2. The applicant states that its peaceful and undisturbed possession of the property
was interrupted on 7 November 2024 when the respondents caused the
perimeter fence along the boundaries of the property to be locked, thus denying
the applicant’s employees access to the site.
3. The requirement s for obtaining of a mandament van spolie are well -known :2
“The mandament van spolie is directed at restoring possession to a party which
has been unlawfully dispossessed. It is a robust remedy directed at restoring the
status quo ante, irrespective of the merits of any underlying contest concerning
entitlement to possession of the object or right in issue; peaceful and
undisturbed possession of the thing concerned and the unlawful despoilment
thereof are all that an applicant for a mandament van spolie has to show. ”
4. The mandament ’s focus is thus on possession, not ownership or the right to
possess. It seeks to preserve the status quo ante and prevent resort to self -help.
It is a remedy to preserve orderly judicial process and does not secure
substantive rights. To succeed, the applicant must prove two requirements:3
4.1. First, peaceful and undisturbed possession at the time of dispossession:
Possession is established by physical control and the intention to possess.
In the context of the present case, t he degree of control necessary to
constitute factual possession is a factual enquiry dependant on the site -
specific locations and the completed state of building works.4 Temporary
absence or partial access given to others does not negate possession if
the intention to retain control is evident .5
4.2. Second, unlawful deprivatio n of possession by the respondent s: Spoliation
1 The “property” or the “site”.
2 Van Rhyn and others NNO v Fleurbaix Farm (Pty) Ltd 2013 (5) SA 521 (WCC) at para [7].
3 On a balance of probabilities. See Yeko v Qana 1973 (4) SA 735 (A) at 739E -G.
4 Scholz v Faifer 1910 TPD 243 at 247 -249.
5 Wightman t/a JW Construction v Headfour (Pty) Ltd 2008 (3) SA 371 (SCA) at paras [26] -[29].
occurs when dispossession happens without the consent of the
possessor, regardless of how it is effected ( for example , by force, deceit,
or stealth).6
5. As will be discussed below, the res pondents deny that the applicant ha s proved
that it was in peaceful and undisturbed possession of the property at the time of
the alleged spoliation. Apart from this defence on the merits, the respondents
raise two points in limine , namely (1) that the matter is not urgent, and (2) that the
applicant’s affidavits have not been properly commissioned, and therefore do not
constitute evidence. I deal with the second of these two issues at the outset.
The applicant’s affidavits
6. The respondents contend that the applicant’s founding affidavit7 has not been
properly commissioned, and therefore that it does not constitute evidence. The
same complaint is raised in relation to the replying affidavit.8
7. The founding and replying affidavits of the applicant’s Mr Swart both record, on
the final pages thereof, as follows:
“Thus duly signed and sworn before me at Paarl on this the [date] day of
Novembe r 2024 by the deponent who has stated that:
a. He knows and understands the contents of the prescribed oath;
b. He has no objection to taking the prescribed oath; and
c. That he regards the prescribed oath as binding on his conscience .”
6 Stocks Housing (Cape) (Pty) Ltd v Chief Executive Director, Department of Education and
Culture Services, and others 1996 (4) SA 231 (C) at 240B -D.
7 Being the affidavit deposed to by Mr Swart on 13 November 2024. The affidavit dated 13
November 2024 of Mr Maree, delivered as part of the founding papers, was excluded from the record
by ag reement between the parties. Its content has thus been disregarded in the determination of this
application.
8 Dated 19 November 2024.
8. The Commissioner signed the relevant page s and affixed his stamp.
9. The procedure for the commissioning of an affidavit is set out in the Regulations
Governing the Administering of an Oath or Affirmation9 promulgated under the
Justices of the Peace and Commissioners of Oaths Act 16 of 1963 . The
regulations are peremptory and not direct ory, but the Court has a discretion to
refuse to receive an affidavit attested otherwise than in accordance with the
regulations where substantial compliance with them has not been proved.10
10. Regulation 1(1) provides that an oath11 “is administered by causing the deponent
to utter the following words: 'I swear that the contents of this declaration are true,
so help me God'. ”
11. Regulation 2(1) and (2) provide as fol lows:
“(1) Before a commissioner of oaths administers to any person the oath or
affirmation prescribed by regulation 1 he shall ask the deponent -
(a) whether he knows and understands the contents of the
declaration;
(b) whether he has any objection to taking the prescribed oath; and
(c) whether he considers the prescribed oath to be binding on his
conscience.
(2) If the deponent acknowledges that he knows and understands the
contents of the declaration and informs the commissioner of oaths that
he does not have any objection to taking the oath and that he
considers it to be binding on his conscience the commissioner of oaths
shall administer the oath prescribed by regulation 1(1) .”
9 GN R1258 in Government Gazette 3619 of 21 July 1972.
10 Parys -aan-Vaal Woonstelle (Pty) Ltd v Plexiphon 115 CC [2022] ZAFSHC 2 (20 January
2022) at para [15] .
11 The taking of an affirmation is not relevant to the present case.
12. Regulation 4 (1) requires the following :
“(1) Below the deponent's signature or mark the commissioner of oaths
shall certify that the deponent has acknowledged that he knows and
understands the contents of the declaration and he shall state the
manner,12 place and date of taking t he declaration. ”
13. The respondents argue that a consideration of the commissioner’s certificate,
quoted above, in relation to Mr Swart’s affidavits shows that the certificate
records that the deponent appeared before the commissioner and stated that he
knew and understood the content of oath, had no objection to taking oath and
that he regarded the oath as binding on his conscience. There is no express
statement of the manner in which the oath was taken as required by regulation
4(1), and no confirmation that the oath was administered in accordance with the
provisions of regulation 1(1) . It follows, so the respondents argue, that the
applicant has faile d to place evidence before this Court in the form of properly
commissioned affidavits.
14. The effect of a document deposed in a similar manner was considered in Nkondo
v Minister of Police and another .13 In Nkondo , despite the document in question
containing the words “ Thus done and signed at Johannesburg this 27th day of
December 1979, the deponent having acknowledged that he knows and
understands the contents of this affidavit. Before me N A Cassim, Commissioner
of oaths; attorney ”, the document was found to not constitute an affidavit. T he
Court held as follows:
“In my view the onus rests upon the person who applies for relief by way of
notice of motion supported by an affidavit or affidavits to show on a balance
of probabilities that he has placed evidence in a proper form before the
Court. In a case where he relies on his own affidavit or affidavits by others he
must satisfy the Court that the affidavits have been properly attested; in order
12 Emphasis supplied.
13 1980 (2) SA 362 (O).
to do so he is obliged to prove that an oath or affirmation was administered to
himself or the other deponents concerned. ”14
15. The Court continued:15
“The requirement that the commissioner of oaths shall state the manner of
taking of the declaration means that it must be stated whether an oath has
been administered or whether the deponent has affirmed the contents of the
declaration as being the truth. The purpose of this requirement is clearly to
provide evidence of the fact that an oath has been administered or that the
deponent has been asked to affirm the truth of the allegations contained in the
documents concerned. A court before which an application is brought must
satisfy itself that it is dealing with allegations that have been attested to on
oath or affirmed in terms of the regulations, as it is only such averments that
can be treated as evidence.”
16. The certificate in the present ca se does contain the words “ duly signed and
sworn …” Counsel for the applicant argued that the word “sworn” in the
commissioner’s certificate is an indication that the oath was in fact duly
administered . On the evidence in totality it can therefore be accepted that the
affidavit was properly commissioned.
17. In Nkondo the Court remarked: “As stated, it is not a sine qua non for the validity
of an affidavit that the commissioner of oaths who administers an oath should
state in so many words that he has done so. If it can be gathered from the
document as a whole that the oath was in fact administered, that will be sufficient
compliance with reg 4(1).16
18. In Nkondo, the commissioner did not indicate that the document was “sworn”
before him, but simply that it was “done and signed”. Is the inclusion of the word
“sworn” in the commissioner’s certificate in the present matter sufficient to
14 At 367E.
15 At 364I -365A. Emphasis supplied.
16 At 367F.
constitute substantial compli ance with regulation 4(1)? Notably, t he Court in
Nkondo remarked17 that the “ normal procedure for a commissioner of oaths who
administers an oath is to state in his certificate that the contents of the
documents were sworn to and signed before him. This would follow naturally
from the fact that he had in fact administered an oath ”.
19. The Court proceeded:18
“The essence of an affidavit is that it is a document the contents whereof have
been sworn to as being the truth. The absence of a statement by the
commissioner of oaths that the contents of the document were sworn to is a
strong indication that an oath was not administered, as every com missioner
of oaths knows or should know that he is required by the regulations to state
that fact. In this case there is no such statement in the certificate. ”
20. In Caldwell v Chelcourt Ltd19 the commissioner of oath s did not allude to the
document in question having been “sworn ” to. His certificate read as follows:
“The deponent, Christine Caldwell, of whose identity I have satisfied myself, has
acknowledged that she knows and understands t he contents of this affidavit
which was signed by her at New York on this 15th day of October, 1964, before
me P. A. Grobbelaar consul of South Africa in New York .”
21. The Court held20 that:
“So far as the word 'deponent' is concerned, it seems to me that it does not take
the matter very far, for one can have a deposition which is not sworn to. The
word 'affidavit' certainly does contain in it a suggestion that the document is a
sworn document and the reference to the Act also can be said to suggest that the
document may have been sworn and that the consul may have been acting as a
commissioner of oaths. But the omission to add the words 'sworn to' or 'solemnly
declared' before the words 'and si gned', seem to me to point the other way .
17 At 368A.
18 At 369F -G.
19 1965 (1) SA 304 (N).
20 At 307A -E. Emphasis supplied.
… there is nothing to show that the applicant understood what form of oath had
to be administered to her and the information which I have before me, it seems to
me, is at least equally consistent with the deponent merely having been asked to
say that she acknowledged that she knew and understood the contents of the
document and then being asked to sign it. If that is what happened, then this
document was never sworn and it is not an affidavit such as is required by the
Rules of Court…. ”.
22. A similar approach was taken in Engineering Requisites (Pty) Ltd v Adam ,21 and
in Lohrman v Vaal Ontwikkelingsmaatskappy (Edms) Bpk22 the Court was
satisfied on a consideration of the document as a whole that it had been duly
sworn to, even in the absence of express wording to that effect.
23. It seems to me, on these dicta , that the word “ duly sworn” in the commissioner’s
certificate in the present matter tips the scales in the applicant’s favour . The
inference can be drawn therefrom (if only just)23 that an oath was duly sworn
before the commissioner. I am accordingly inclined to accept for the purposes of
this matter that the applicant’s founding and replying statements do in fact
constitute affidavits, and that the applicant’s evidence is properly before the Court
for the determination of this applica tion.
Was the applicant in peaceful and undisturbed possession of the property ?
24. As I have heard full argument, I proceed to consider the issue that is in dispute
on the merits, namely the applicant’s alleged undisturbed possession of the
property.
25. The respondents deny that the applicant was in peaceful and undisturbed
possession of the property at the time of the alleged spoliation. They contend,
further, that the applicant’s founding papers do not support an assertion of
peaceful and undisturbed po ssession, as the applicant is silent on how such
21 1977 (2) SA 175 (O) at 176H.
22 1979 (3) SA 391 (T) at 396B -398E.
23 It is not clear why the applicant did not , in the face of the respondents’ objection, procure an
affidavit from the commissioner of oat hs to explain how the oath had been administered.
possession was maintained throughout the various periods into which the parties’
relationship can be divided.
26. Despite these being spoliat ion proceedings, the degree of proof and the onus on
the applican t remain unchanged:24
“Where a final order is sought in an application and there are disputes of fact on
the papers, then the matter can be resolved on the facts stated by respondent
together with the admitted facts in the applicant's affidavits … In the first
paragraph of the he adnote in the case of Nienaber v Stuckey 1946 AD 1049 , the
test is set out as follows:
‘Where the applicant asks for a spoliation order he must make out not only a
prima facie case, but must satisfy the Court on the admitted or undisputed facts,
by the same balance of probabilities as is required in every civil suit, of the facts
necessary fo r his success in the application .’”
27. On the respondents ’ version, the applicant had access to and took possession of
the property during August 2023 after its appointment in accordance with the
building agreement concluded between the parties . The appl icant points out that
building works up to the walls were completed by 8 March 2024. On 22 April
2024, following what was a (and seems to be an ongoing) dispute regarding
payment for the construction work done , the applicant ceased the works, during
which time the second respondent had free and unfettered access to the site.
28. The applicant’s empty site office, storage container and portable toilet remained on
site, and were removed on 30 October 2024. From 30 October 2024 onwards
there were, therefore, no longer any of the applicant’s equipment on the site.
The applicant removed its signage from the site notice board.
29. It is common cause between the parties that the construction agreement has
been cancelled.
24 Chopper Worx (Pty) Ltd and another v WRC Consultation Services (Pty) Ltd - 2008 (6) SA
497 (C ) at para [12].
30. Notably, however, f or the period April 2024 until October 2024 the applicant had
not proceed ed with the building work . During this time, the site was not locke d.
The second respondent allowed sub-contractors onto the property to continue
with various works , including the erecti on of the roof of the building .
31. On 30 October 2024 the applicant, having removed its property, locked the site.
When the first respondent attended at the property on the afternoon of 7
November 2024 she met the applicant’s representative there, who informed her
that he had been instructed to ensure that a worker attend at the site every day, if
only to sweep the gro und. This occurred, on the respondents’ version, out of the
blue. On the same date the respondents' attorneys therefore directed
correspondence to the applicant’s attorneys demanding that the locks and chain
be removed from the entrance gate to the property. Later that afternoon th e first
respondent placed her own padlock on the chain on the gate.
32. Having considered the affidavits as a whole I agree with the respondents that the
applicant’s version is lacking in specificity. The facts contained in the founding
affidavit do not set out the circumstances of the applicant ’s alleged continuous
occupation of the property since April 2024 – the applicant relies on a bare
assertion in this respect. It focuses, instead, on the dispute between the parties
as to the issue of interim payment certificates and payment s made over this
period, and the correspondence exchanged during that time.
33. There is no evidence as to how the applicant exercised control over the property
for the period April 2024 to 7 November 2024. It does not say that there was a
physical presence on the site for the entirety of this period or that the
property was fenced off with a lock allowing only the applicant entry for the
entirety of the relevant period. On the contrary, the applicant acknowledges that
the respondents had access to the property in th at applicant accuses the
respondents of having locked the containers used by the applicant (the
respo ndents allege that the applicant’s own site manager placed a lock on the
containers) .
34. The important issue is, however, that the respondents accessed the property
over a period of half a year and caused work to be done there , without the
applicant’s pe rmission (and without the applicant insisting on its permission being
sought) and without its control .25 The applicant was, so it appears, fully aware of
the position. There is no case made out in the founding papers for an argument
to the effect that the applicant had given the respondents access to the site for a
limited purpose in accordance with an understanding between them , as was the
case in Wightman t/a JW Construction v Headfour (Pty) Ltd and another26 where
the Supreme court of Appeal held that :
“The appellant retained the main set and delivered the duplicates for a limited
purpose which was not broad enough to justify the second respondent in
taking a more extensive physical control nor did it warrant a belief on hi s part
that the appellant intended to abandon any of the control which he had
hitherto exercised exclusively. The appellant only delivered the duplicates
because he had come to an accord with the second respondent . The second
respondent ostensibly received them on the same basis.
[29] Physical possession of the premises was only lost when the second
respondent used the duplicate set to obtain entry and, in doing so, manifested
a state of mind to possess the premises in spite of the terms of the
understandi ng. … ”
35. In my view, the fact that previous correspondence from the respondents over the
preceding months did not squarely emphasize the question of possession of the
property (an issue first explicitly raised by the respondents’ current attorneys, and
an aspect upon which the applicant relies heavily) does not detract from the
reality, which was that the applicant was no longer in possession of the site. The
fact that the applicant had not been on site had nevertheless been raised by the
respondents’ p rincipal agent on 16 October 2024, when the respondents pointed
out that the applicant had not progressed with the work since April 2024, and
25 The situation is accordingly different from that which pertained in Stocks Housing (Cape) (Pty)
Ltd v Chief Director, Department of Education and Culture Services, and others 1996 (4) SA 231 (C)
at 241 G-J.
26 2008 (3) SA 371 (SCA) at para [28] -[29]. Emphasis supplied .
again on 21 October 2024, when the principal agent placed on record that the
applicant had not “ maintained the con tinuous presence of a competent person ”
on site.
36. Even if it were to be accepted that the only relevant period for the purposes of
this application was the time between the end of October 2024 (when the
applicant locked the gate to the property) and 7 November 2024 (when the first
respondent put a lock onto the gate , giving rise to this application ), the founding
papers are devoid of particulars. And even if, during that time, the temporary
fence between the site and the neighbouring construction site was reinstated , as
the applicant says it was , then the applicant can not contend that it was in
peaceful and undisturbed possession of the property prior to such reinstatement ,
as it had no control over access thereto. That the applicant wished to resume
possession of the site in early November 2024 is clear; whether it in fact had
possession prior to 7 November 2024 is not , and its actions from 30 October
2024 onwards amounted to “too little, too l ate”:
“… mere temporary absence for a short time would not destroy the physical
element which is necessary to constitute possession. … But where work is
suspended for a considerable period of time, then it seems to me that if the
builder desires to prese rve his possession he must take some special step,
such a placing a representative in charge of the work or putting a hoarding
around it, or doing something to enforce his right to its physical control. If he
chooses to leave the work derelict , then, no m atter what his intention may be,
the physical element is absent, and he loses possession, even though he may
say he intended to resume it or never abandoned it; the animus may be there
but the detentio is absent. It seems to me that a builder who has ceas ed
work, and whom the owner has warned that it will be completed by another if
he does not continue it, should take some special step to define his position
and assert his control, if he wished to ask the Court to regard his possession
as still existing. ”27
27 Scholtz v Faifer 1910 TPD 243 at 247 -248.
37. In Wightman t/a JW Construction v Headfour (Pty) Ltd and another28 the following
was stated (in the context of an answering affidavit) as regards the making of
allegations which fall within a party’s knowledge:29
“When the facts averred are such that the disputing party must necessarily
possess knowledge of them and be able to provide an answer (or countervailing
evidence) if they be not true or accurate but, instead of doing so, rests his case
on a bare or ambiguous denial the court will generally have difficulty in finding
that the test is satisfied . I say generally be cause factual averments seldom stand
apart from a broader matrix of circumstances all of which needs to be borne in
mind when arriving at a decision. A litigant may not necessarily recognise or
understand the nuances of a bare or general denial as against a real attempt to
grapple with all relevant factual allegations made by the other party. But when he
signs the answering affidavit, he commits himself to its contents, inadequate as
they may be, and will only in exceptional circumstances be permitted to disavow
them. There is thus a serious duty imposed upon a legal adviser who settles an
answering affidavit to ascertain and engage with facts which his client disputes
and to reflect such disputes fully and accurately in the answering affidavit. If that
does not happen it should come as no surprise that the court takes a robust view
of the matter. '
38. I agree with the respondents’ submission that the applicant’s papers are ob lique.
There is no explicit contention given as to for which period, and by which method,
the applicant contends that it was in peaceful and undisturbed possession of the
property over the past months . It mentions works continuing up to April 2024, and
then alleges that it returned to the property and recommenced works during
October 2024 (which the respondents deny). The applicant is silent as to what
happened during November 2024 .
39. I agree, too, with the respondents’ argument that it appears that when settlement
attempts as to the payment dispute were unsuccessful , the applicant took steps
28 2008 (3) SA 371 (SCA) at para [13]. Emphasis supplied.
29 In amplification of the rule as set out in Syntheta (Pty) Ltd (Formerly Delta G Scientific (Pty)
Ltd v Janssen Pharmaceutica NV and another 1999 (1) SA 85 (SCA).
to repair the fence around the property which had fallen into disrepair, and then
sought to place an employee on the property so as to put itself in a position that it
could claim possession of the property, and thereby force the second respondent
to comply with its demands. The placing of an employee at the property daily to
sweep, in respect of a contract which has been terminated, seems to be a
somew hat transparent attempt at regaining what had been lost months ago.
40. In these circumstances, I am unable to find that the applicant had peaceful and
undisturbed possession of the property at the relevant time , entitling it to invoke
the mandament in the face of the respondents’ actions.
The issue of urgency
41. I have dealt with the application on the merits, but I nevertheless d iscuss the
issue of urgency because there is merit in the respondents’ argument in relation
thereto in the context of this application.
42. There is no dispute that in considering the grant or otherwise of a mandament a
court does not investigate the underlying transaction giving rise to the alleged
possession of the property . As appears from the principles referred to earlier, the
applicant does not have to demonstrate that it has a legal right to retain
possession. The principal enq uiry is whether the person in possession was
deprived thereof without his consent or acquiescence.30 The respondents
emphasize that t here is , however, no such rule relating to urgency. An applicant
still needs to establish, beyond the bare assertion that a mandament is inherently
urgent, that the application should be heard as one of urgency.
43. It is incumbent upon the litigant wishing to dispense with the ordinary rules of
procedure of this Court to stipulate the reasons why the matter is indeed urgent,
and further to stipulate specifically why it will not be afforded redress in due
course should the ordinary procedures not be followed.31 The second leg of the
30 Stocks Housing (Cape) supra at 239H -240E.
31 Rule 6(12)(b) stipulates that: “ In every affidavit or petition filed in support of any application
under paragraph (a) of the subrule, the applicant shall set forth explicitly the circumstances which he
enquiry is frequently overlooked. In Salt and another v Smith32 the Court held as
follows:
“In this submission Mr Botes overlooks the fact that Rule 6(12)(b) requires his
clients to provide reasons why they claimed that they should not be afforded
substantial redress at a hearing in due course. With reference to Rule 6(12)(b) it
has been said by Coetzee J in Luna Meubel Vervaardigers (Edms) Bpk v Makin
and Another (t/a Makin's Furniture Manufacturers) 1977 (4) SA 135 (W) at 137F:
'Mere lip service to the requirements of Rule 6(12)(b) will not do and an applicant
must make out a case in the foun ding affidavit to justify the particular extent of
the departure from the norm, which is involved in the time and day for which the
matter be set down.' ….”
44. As indicated, i t is common cause in the present matter that the agreement as
between the applicant and the second respondent has been cancelled . The
applicant alleges no need to be in occupation of the property, no prejudice that is
being suffered b ecause of the lack of possession of the property, and no reas on
why it cannot obtain redress in due course. In this regard , the applicant relies
only on the argument that spoliation proceedings are generally regarded as
urgent, and the bare assertion that it “would not be able to obtain substantial
redress if the a pplication had to be brought in the normal course .”
45. Such bare assertion does not have any significant probative value . In Syntheta
(Pty) Ltd (formerly Delta G Scientific (Pty) Ltd ) v Janssen Pharmaceutica NV and
another33 the Supreme Court of Appeal held that a “bald assertion does not
establish facts necessary for a legal conclusion .”
46. The respondents contend that it is not sufficient in matters such as the present
merely to state that they are inherently urgent. A proper case for urgency still
avers render the matter urgent and the reasons why he claims that he cannot be afforded substantial
redress at a hearing in due course .” (Emphasis added.)
32 1991 (2) SA 186 (NM) at 187E -H. See also Modack v The Regional Commissioner, Western
Cape, of the Department of Correctional Services and another [2022] ZAWCHC 139 (21 July 2022) at
para [23].
33 1999 (1) SA 85 (SCA) at 91C.
needs to be made out. Counsel referred to Mans v Mans34 where this Court
discussed the issue of urgency in the context of spoliation proceedings as
follows:
“[6] … it is trite that a litigant who relies on urgency in order to justify a
departure from the strict provisions of the Rules is required in terms of Rule
6(12)(b) to "set forth explicitly the circumstances which he avers render the
matter urgent and the reas ons he claims that he could not be afforded
substantial redress at a hearing in due course". It is also true that there are
numerous examples in our case law where applications have been dismissed
because a party has failed to comply with these provisions.
[7] The grounds for urgency advanced by the husband in casu are the
following:
‘12.1 At the present time, I am surviving in the property with the bare
essentials. It is, however, imperative that the goods as listed in
annexure "A" be returned to the property in order that I can resume a
normal daily life. Furthermore, I have no curtains in the property other
than in the bedroom. This makes living conditions intolerable for me.
12.2 I have been advised that if I were to institute this application using
the Long Form Notice of Motion, this application would only be heard in
approximately one year's time. By virtue of the nature of the goods
removed by the Respondent, this would make life totally intolerable for
me, as it is imperative that possession of the said goods be restored to
me as soon as possible. ’
[8] I agree with Mr Gamble, who appe ared on behalf of the wife, that these
allegations in support of urgency are somewhat sketchy and unconvincing, to
say the least. Nevertheless, I am of the view that a court is entitled to look at
the facts of the case as a whole in deciding whether a part icular matter is to
34 1999 JDR 0450 (C) at paras [6] -[10]. Emphasis supplied.
be treated as urgent or semi -urgent, as the case may be. The facts may be
such that the urgency of the matter is self -evident, for instance where
someone's personal liberty or safety is involved, or where a child is likely to
suffer phy sical or psychological harm. In such circumstances it would be
pedantic, in my view, to non -suit an applicant merely for failing to spell out
explicitly and in detail in the founding affidavit all the reasons why the
application is alleged to be urgent.
[9] It was pointed out by MUNNIK J (ADDLESON J concurring)
in Mangala v Mangala 1967 (2) SA 415 (E) at 416F that "it does not follow
that, because an application is one for a spoliation order, t he matter
automatically becomes one of urgency." Nevertheless, as a broad
generalisation and not as an absolute rule I incline to the view more recently
expressed by ERASMUS J in Ross v Ross 1994 (1) SA 865 (E) at 872J, that
ordinarily "spoliated victims" are "entitled to approach the Court ... on an
urgent basis". The mandament van spolie is by its very nature a speedy and a
robust remedy, which should, in my view, ordinarily be afforded some degree
of urgency, depending on the facts of the particular matt er, in order to be
effective .
[10] Having regard to the facts as a whole, I am satisfied that the husband
was entitled to bring the present application before court on a slightly abridged
timeframe, as he did. Not only is this a spoliation application, but the goods
allegedly spoliated (or most of them) are items of household furniture which
are ordinarily in daily use. He was entitled, in my view, to obtain certainty as
soon as reasonably possible as to whether he was going to obtain return of
those goods or whether they may have to be replaced . Moreover, the wife
cannot, nor does she, claim to have been prejudiced by the fact that the
matter was treated on an expedited basis. It would be unfair, in my view, to
compel a litigant in these circumstances to co nduct the litigation at the more
leisurely pace dictated by the Rules relating to non -urgent matters. ”
47. This extract is instructive. Clearly the Court in Mans found the matter to be
urgent not only on the accep tance that the remedy is inherently urgent, but on
“the facts as a whole ”.
48. In the present matter, t he applicant advances no facts as to why it cannot obtain
redress in due course. There is no reason why it needs to be in occupation of the
property. It does not allege that it will continue working on the property (on the
contrary, the construction agreement has been terminated) , and it does not
allege that it has movables on the property that need protection, or any other
factor that would n ecessitate its possession of the property on an urgent basis .
The applicant requires possession of the site merely for the enforcement of its
monetary claim against the respondents.
49. There was accordingly no reason why the matter could not have been dealt with
in the ordinary course, or on a semi -urgent basis. The contract that regulated the
parties’ relationship, too, contained provisions for the determination of the
ongoing payment di sputes between them. These were not employed. Instead,
this application was launched on extremely truncated timelines following a clear
hiatus in the applicant’s possession of the site. This strengthens the impression
that these proceedings were aimed a t forcing a settlement of the main bone of
contention between the parties, namely the alleged non -payment of the work
done by the applicant at the property.
50. On the facts as a whole, it cannot be said that the application – albeit a spoliation
applicat ion – was urgent. As indicated, however, I have nevertheless considered
the merits, and have found the applicant’s case to be lacking.
Costs
51. There is no reason why costs should not follow the result. Each of the parties
seeks costs on the scale as between attorney and client , but I do not regard this
matter as justifying punitive costs. In the exercise of my discretion under Rule
67A I am of the view that the applicant should pay the respondents’ costs on a
party and party scale, with counsel’s fees taxed on Scale B.
Order
52. In the circumstances, the following order is granted:
52.1. The application is dismissed, with costs, including counsel’s fees taxed
on Scale B.
____________________
P. S. VAN ZYL
Acting judge of the High Court
Appearances:
For the applicant : Mr D. M. Lubbe , instructed by Allardyce &
Partners
For the responden ts: Mr L. Wilkin, instructed by MDA Attorneys